Tuesday, September 25, 2012

PA Chamber of Commerce Attacks Injured Workers

The Pennsylvania Chamber of Business and Industry (the Pennsylvania chapter of the United States Chamber of Commerce) often suggests changes to the Workers' Compensation Act that will harm injured workers rights' and help major cooperations big business.  Every year they come out with new proposals to limit the rights afforded under the Workers Competition Act to injured employees.  This year is no different.  I'm not going to give them a link....so google them if you want to find their site.

Some of the major suggestions to the Workers' Compensation Law that the Pennsylvania Chamber of Commerce is suggesting:  

1.  Alter the fee schedule.  The Chamber proposes to change the amount of money that workers' compensation insurance companies have to pay doctors for the treatment of injured workers.  Obviously, they are not proposing to pay more.  They want the insurance companies to pay the doctors less.  

2.  The Chamber has proposed to double the time that an injured worker has to treat with a panel physician.  Currently, it is 90 days.  The law says that if your injured at work you have to treat with a panel physician for the first 3 months after the work injury.  Now, the Chamber wants to increase that to 180 days.  

3.  The Chamber proposes to take away the Workers' Compensation Judges' ability to determine if medical treatment provided to an injury worker was "reasonable and necessary" thus requiring the insurance company to pay for the treatment.  Currently, judges are the individuals who ultimately decide whether or not a doctor will get paid for treatment that renders an injured worker.  If that treatment is related to the work injury and is reasonable and necessary, the workers' comp insurance has to pay.  Now, the Chamber is proposing to take away that right from a judge and to rely upon "independent" peer review doctors to make that decision.  

4.  The Chamber is proposing to limit the places where injured workers can get prescription drugs.  The Chamber has proposed the use of a prescription benefits manager to provide drugs to injured employees.  How it normally works is that you can go to any pharmacy you wish and send the bill to the workers' compensation insurance company for payment.  However, the insurance companies want to retain the right to dictate where you can get your medications.  

As you can probably tell, the Pennsylvania Chamber of Business and Industry is not on the side of working Pennsylvanians who are injured.  They are on the side of big business and the insurance industry.  I urge you to contact your State Representative and your State Senator and ask that they do not enact laws that harm the rights of the injured workers in the Commonwealth of Pennsylvania.  

Monday, September 17, 2012

The "Independent Contractor" Scam

Are you an employee or are you an independent contractor?  The answer to this question could determine whether you get the rights that you are entitled to if you're hurt on the job.  If you are an "independent contractor" then you do not get the protections of the workers' compensation laws of Pennsylvania.  Your employer will not pay for your medical bills or pay your lost wages if you are hurt at work.  Because of this, many employers try to label their employees as "independent contractors" as opposed to actual employees in order to deny you what is owed to you under the law of the Commonwealth of Pennsylvania.

This practice of misclassifying workers as "independent contractors" rather than "employees" enables corporations to: (i) cheat workers out of basic benefits (such as, for example, overtime pay, worker’s compensation insurance, and unemployment insurance), (ii) cheat the government out of tax dollars, and (iii) gain an unfair advantage over competitors who comply with the law.

Make no mistake about it:  the practice of misclassifying employees as “independent contractors” is a disaster for American workers and their families.  Congress’ failure to effectively crack down on this practice is a national embarrassment.

Since our politicians are incapable of protecting working families against the independent contractor scam, it’s up to Trial Lawyers and the hard-working (but under-resourced) Department of Labor to protect working families.

Based on our review of the recent caselaw, Federal Court decisions appear to be trending in favor of workers in lawsuits alleging independent contractor misclassification.  It seems that Federal Judges are becoming more skeptical of the independent business model.

We see hints of the growing judicial skepticism in Seventh Circuit Court of Appeals opinion issued in the massive, multi-district litigation involving thousands of FedEx package delivery drivers allegedly misclassified as independent contractors.  (Our firm has the privilege of working on the FedEx litigation alongside many excellent law firms throughout the United States.)

The Seventh Circuit opinion, issued on July 12, 2012, made some very cogent observations about the importance of the independent contractor misclassification issue:

The question [of whether the drivers were properly classified as independent contractors] appears to be a close one.  And the issue is of great importance not just to this case but to the structure of the American workplace.  The number of independent contractors in this country is growing.  There are several economic incentives for employers to use independent contractors and there is a potential for abuse in misclassifying employees as independent contractors.  Employees misclassified as independent contractors are denied access to certain benefits and protections.  Misclassification results in significant costs to government:”[B]etween 1996 and 2004, $34.7 billion of Federal tax revenues went uncollected due to the misclassification of workers and the tax loopholes that allow it.”  And misclassification “puts employers who properly classify their workers at a disadvantage in the marketplace[.]”  FedEx has approximately 15,000 delivery drivers in the U.S.  This case will have far-reaching effects on how FedEx runs its business. . . throughout the United States.  And it seems likely that employers in other industries may have similar arrangements with workers, whether delivery drivers or other types of workers.  Thus, the decision in this case will have ramification beyond this particular case and FedEx’s business practices, affecting FedEx’s competitors and employers in other industries as well.

Craig v. FedEx Ground Package System, Inc., 686 F.3d 423 (7th Cir. 2012)

The Seventh Circuit hit the nail on the head.  In these tough economic times, the fight against independent contractor abuse is more important than ever.

If your firm represents current or former independent contractors in workers compensation lawsuits or other types of litigation, we would be delighted to speak with your clients about whether, due to misclassification, they might be able to recover overtime wages and other valuable benefits.  As you know, we always pay a fair referral fee.

****The foregoing article was provided by the law firm of Winebrake & Sintillo, LLC.  If you feel that you have been unfairly denied your wages or overtime pay, please contact Winebrake & Sintillo, LLC.  They are the best wage & hour lawyers in Pennsylvania.

Thursday, September 13, 2012

Certified Nursing Assistants Vulnerable to Work Injuries

Certified Nursing Assistants (CNA's) who work in nursing homes or special care homes are likely to be injured at work 2.3 times more than all private businesses combined.  This information has been provided by the Occupational Safety and Health Administration.  

In my 17 years of representing injured workers in workers compensation cases, CNA's have been one of the most frequent professions that I see.  In my opinion, this stems from the fact that often times they are required to lift heavy patients.  Further, they are not provided with the appropriate training for assisted lifting or the appropriate devices or the appropriate levels of staffing.  Often times, these workers are overworked and underpaid and are basically left on their own to handle way too many patients.

It takes a special kind of person to be a Certified Nursing Assistant working in a nursing home caring for elderly people.  I think they deserve more credit than they get.  They deserve more pay than they receive and they certainly deserve to have a safer working environment.

If you are a CNA and have been injured at work or know of a friend who has been injured at work and you have questions, always feel free to contact me.  

Tuesday, September 11, 2012

9/11 Unintended Consequences....More Car Accidents

One of the many unintended consequences of 9/11 was a significant increase in the amount of car and truck crashes in the year after 9/11.  It has been estimated that approximately 1,600 extra motor vehicle deaths occurred in the year after 9/11 due to people being afraid of flying and choosing to drive instead.

To give you some perspective, the risk of being killed in a car or truck accident in the United States in any given year is one in 7,000.  But dying of cancer is one in 600 and dying of heart disease one in 400.

In 2010, the number of people killed in car accidents in the United States was 32,885.  In the year 1972, the number of deaths was 54,589.

Thursday, September 6, 2012

The Facebook Problem

One of the interesting aspects of our modern societies' fascination with social media is how that social media, particularly Facebook, is being used in litigation, specifically personal injury litigation and divorce/custody litigation.  A new tactic from insurance company defense lawyers that I've been seeing is them requesting to have access to plaintiff's Facebook account so that they can fish around in your posts, pictures and private communications with your Facebook friends.  An insurance defense lawyer is basically trying to find something that they can use against you in your personal injury case or  your workers' compensation case.  Although I don't do family law, this also occurs in divorce litigation and custody litigation.  All they need to do is to find some photo or comment that was posted by you or a friend and twist that to make you look bad.

One of the best pieces of advice that I can give to clients is to make sure that your Facebook profile security settings are as private as possible, particularly if you have a personal injury case like an auto accident case or a slip and fall or a defective product that has injured and disabled you.  This also applies to workers compensation cases.  These insurance defense lawyers will find any little piece of information or photograph that is posted by you or about you and twist it to make it seem like you are faking your injury.  It is difficult to defend against these requests, however, if your Facebook security profile is left open for the general public to see.  How can I go in front of the Judge and say that this is an invasion of your privacy when anyone can get on Facebook and see your entire life.  

Another sneaky trick that insurance defense lawyers like to do is to have their secretaries or paralegals "friend" you in order to get access.  However, this is a double edged sword.  There have been ethics decisions adverse to these insurance defense lawyers for basically sneaking around a persons' private life without them knowing and then using that information against them in court.  

The bottom line is that you have to be careful with who you friend and what type of security profiles that you use in your social media.  And most importantly, if you have a new personal injury case or workers compensation case or are involved in divorce litigation, be careful what you post on Facebook.  You truly don't know whose watching.

Tuesday, September 4, 2012

Philadelphia Drivers Among The Nation’s Worst

For all of you Philly people....LOOK OUT!!  I'm often traveling to the Philly region for work and play.  Thankfully, I've never been in an accident.  But time is not on my side given this report.  The only advice I can give is to drive defensively, don't text and make sure you have good insurance.  Many people are surprised by the number of driver who don't even have insurance or have very minimal insurance.  But you can purchase additional insurance on your own policy to protect against those irresponsible drivers-- Un-insurance and Under-insurance.  Call your agent today and double check your coverage and make sure you have these types of coverages.  As always, if you have any questions, you can always just call or email me.  Drive Safe!

According to Allstate’s 8th annual “America’s Best Drivers Report,” Philadelphia ranks as one of the least safe driving cities, landing at number six on the list. The report ranks the 200 largest cities in terms of car collision frequency.  According to the report, the average driver in Philadelphia will get into an accident every 6.1 years. Philadelphia drivers were 64.1 percent more likely to get into an accident than the average driver.
The national average is one crash every 10 years.